Steven M. Taber Irvine, California

TABER LAW GROUP PC

Introduction Bird Strikes: 1,770 reported in 1990, 9,840 reported in

2011 – a five-fold increase. Due to increase in large bird populations, such as

Canada Geese, White and Brown Pelicans, Sandhill Cranes, Wild Turkeys and Bald Eagles.

Wildlife strikes have resulted in at 24 deaths and 235 injuries in the United States.

Wildlife Strikes have caused nearly 600,000 hours of aircraft downtime and $625 million in damages annually.

49 U.S.C. § 44718 States that the FAA shall require proponents of

structures to give “adequate public notice” if doing so will promote “safety in air commerce.” 49 U.S.C. § 44718(a).

Also requires that the FAA conduct an aeronautical study when a structure interferes with navigable airspace. 49 U.S.C. § 44718(b).

FAA Order 5190.6B FAA Airport Compliance Manual FAA Order 5190.6B is available online at

http://www.faa.gov/airports/resources/publications/orders/compliance_5190_6/

Section 7.13(e) illuminates a bit an airport’s responsibilities with respect to wildlife hazards. (1) “. . . For airports serving only piston-powered aircraft, FAA recommends a separation distance of 5,000 feet between an AOA and a hazardous wildlife attractant. . .” (2) “. . . For airports selling Jet-A fuel, FAA recommends a separation distance of 10,000 feet between an AOA and a hazardous wildlife attractant. . .” (3) “. . . For all airports, the FAA recommends a distance of five (5) statute miles between the farthest edge of the AOA and the hazardous wildlife attractant if the attractant could cause hazardous wildlife movement into or across the approach or departure airspace.”

FAA Order JO 7400.2H, Procedures for Handling Airspace Matters, ¶ 7-1-2(b) FAA Order JO 7400.2H is available online at

http://www.faa.gov/documentLibrary/media/Order/Basic7400.2H.pdf

While this Order mainly concerns Part 77 obstruction standards, there is language to indicate FAA’s intention to have Part 77 Hazard Determinations to cover wildlife concerns as well.

Specifically, ¶ 7-1-2(b) states that a division that objects to a No Hazard Determination for reasons other than Part 77 obstruction standards, such as Wildlife Attractants, shall issue the Determination instead of Air Traffic.

FAA Advisory Circular 150/5200-33B, Hazardous Wildlife Attractants On or Near Airports It is advisory, but as you well know, it is required for

federally-obligated airports – “Airports that have received Federal grant-in-aid assistance must use these standards.”

This AC represents the most complete discussion of responsibilities of airports and the FAA with respect to wildlife hazards at or near airports.

AC 150/5200-33B is available online at http://www.faa.gov/documentLibrary/media/advisory_circular/150-5200-33B/150_5200_33b.pdf

Establishes Separation Distances between Wildlife Attractants and Airports. Mentions the separation distances that were also

mentioned in FAA Order 5190.6B. 5,000 feet for airports that serve piston powered

aircraft 10,000 feet for airports that serve turbine powered

aircraft Five statute miles “between the farthest edge of the

airport’s AOA and the hazardous wildlife attractant if the attractant could cause hazardous wildlife movement into or across the approach or departure airspace.”

What Kind of Land Use Practices Are We Talking About? Waste disposal operations

Municipal Solid Waste Landfills Transfer Stations Composting operations (not on site or less than 1,200

feet from AOA) Underwater waste discharges Recycling centers are acceptable, if the waste to be

recycled is cleaned first. Construction and Demolition debris facilities,

acceptable if not co-located.

What Kind of Land Use Practices Are We Talking About? Water Management Facilities

Stormwater management facilities Wastewater treatment facilities Artificial Marshes Wastewater discharge and sludge disposal

Wetlands Existing wetlands Mitigation for wetland impacts from airport projects

What Kind of Land Use Practices Are We Talking About? Dredge Spoil Containment Areas Agricultural Activities

Livestock production Aquaculture Alternative uses of Agricultural Land

Golf Courses, Landscaping and Other Land-Use Considerations Golf Courses Landscaping and landscape maintenance Airports surrounded by wildlife habitat

What Kind of Land Use Practices Are We Talking About? Synergistic Effects of Surrounding Land Uses.

“There may be circumstances where two (or more) different land uses that would not, by themselves, be considered hazardous wildlife attractants or that are located outside of the separations identified in Sections 1-2 through 1-4 that are in such an alignment with the airport as to create a wildlife corridor directly through the airport and/or surrounding airspace.”

Particularly relevant when looking at the “5-mile radius” separation distance.

Procedures for Wildlife Hazard Management by Operators of Public-Use Airports Wildlife Hazard Management at Airports: a Manual

for Airport Personnel http://wildlife-mitigation.tc.FAA.gov/

Until recently, Wildlife Hazard Assessments, under Title 14, Code of Federal Regulations, Part 139 (14 CFR 139.337(b)) were required only under certain circumstances, enumerated in 139.337(a).

Wildlife Hazard Management Plan (WHMP) FAA will determine if a WHMP will be necessary Uses WHA as the basis.

Procedures for Wildlife Hazard Management by Operators of Public-Use Airports Local Coordination

Establishment of a Wildlife Hazards Working Group “At the very least, airport operators must ensure they are

on the notification list of the local planning board or equivalent review entity for all communities located within 5 miles of the airport, so they will receive notification of any proposed project and have the opportunity to review it for attractiveness to hazardous wildlife.”

Coordination/Notification of Airmen of Wildlife Hazards

FAA Notification and Review of Proposed Land-Use Practice Changes FAA does not bar wildlife attractants – it “discourages

the development” of wildlife attractants within the separation distances.

MSWLF Units – as that term is defined under RCRA – are pointed to EPA regulation 40 CFR 258.10.

FAA “strongly recommends against any waste handling facility within the separation distances”

FAA Notification and Review of Proposed Land-Use Practice Changes FAA “encourages” airport operators to be aware of proposed land

use practice changes that may attract wildlife. They are “encouraged” to use FAA Form 7460-1 Notice of

Proposed Construction or Alteration to notify the FAA. FAA also wants airport operators to know that federally-

obligated airports “are required by their grant assurances to take appropriate actions to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations. The FAA recommends that airport operators to the extent practicable oppose off-airport land-use changes or practices within the separations identified in Sections 1-2 through 1-4 that may attract hazardous wildlife. Failure to do so may lead to noncompliance with applicable grant assurances.”

FAA Has Not Effectively Implemented Its Wildlife Hazard Mitigation Program

http://www.oig.dot.gov/sites/dot/files/wildlife%20report.pdf

Issuance of DOT Inspector General’s Audit Report On August 22, 2012, the DOT Inspector General issued

an Audit Report entitled FAA Has Not Effectively Implemented Its Wildlife Hazard Mitigation Program

FAA “is in the process of amending its regulation to require”all certificated airports to conduct a Wildlife Hazard Assessment and to periodically update (OIG p.4) This will require more than 500 WHA’s over the 5 years.

Once the regulation has been amended, there will be much more emphasis on Wildlife Hazard Assessments.

FAA’s Oversight and Enforcement of Airport Wildlife Mitigation Efforts Are Insufficient Oversight and Enforcement of Airports’ Compliance with

Wildlife Hazard Mitigation Requirements Is Lacking FAA’s Documentation of Part 139 Inspections was unreliable:

OIG found the checklists used by inspectors to be 75% inaccurate

FAA missed opportunities to identify instances of noncompliance

FAA does not verify that airports check the qualifications of wildlife biologists who conduct the required assessments

FAA’s oversight of airports’ assessments and plans is limited

FAA’s Policies and Guidance for Monitoring, Reporting, and Mitigating Wildlife Hazards Are Mostly Voluntary Most of FAA’s Policies and Guidance are Voluntary,

thereby limiting the FAA’s effectiveness. Voluntary Policies and Guidance Result in Incomplete

Strike Reporting and Data FAA lacks Performance Metrics to Measure Progress

Toward Its Program Goal

FAA’s Coordination with Most Government Agencies on Wildlife Hazard Mitigation is Limited and Infrequent FAA has deferred its Wildlife program to the USDA’s

Wildlife Services. Interagency Coordination with other Agencies is

limited FAA does not coordinate with agencies to resolve

permit issues

Recommendations In General

OIG had 10 specific recommendations, but here are general issues that the OIG thought the FAA should cover: (1) FAA must improve its management processes by improving oversight and enforcement of Program regulations; (2) Make strike reporting mandatory; (3) Establish performance metrics; (4) Strengthen coordination with other governmental agencies.

Recommendations to Airports There are three of the specific recommendations that

Airports need to be aware of – even though FAA objected to them. These are: 4. Require that airports, as part of their wildlife hazard

management plans, maintain reports of all wildlife strikes and submit the reports quarterly to FAA for review.

5. Require inspectors to verify that airports’ quarterly wildlife strike reports contain key data fields, such as extent of damage, species of wildlife, phase of flight, altitude that the strike occurred, and effect on flight; and to contact the airports with any incomplete or missing data to obtain the information, if available.

6. Reconcile the airports’ quarterly reports with FAA’s National Wildlife Strike Database and ensure any missing strikes are entered into the database.

Recommendations to Airports: Notification Recommendation 9: “Establish notification

procedures with other government agencies to notify FAA of project proposals that may increase hazardous wildlife populations within a 5-mile radius of airports.”

This will go a long way to correcting the information gap that may catch airport operators off-guard – if FAA shares that information.

Recommendations to Airports: Inspection and Inspectors Indirect effect on airports: FAA inspectors are going to

be more thorough in their inspections of airports FAA inspectors are going to check qualifications of

Wildlife Biologists who perform WHAs FAA Inspectors are going to be more knowledgeable

about Wildlife Hazard issues.

Program Guidance Letter 09-01 regarding Use of Private Wildlife Biologists FAA PGL 09-01 Eligibility of Wildlife Hazard Assessments states

that you must first go to the private industry before using USDA-WS “There may be a national shortage of qualified airport wildlife

biologists in the private sector to conduct these assessments. If after soliciting qualifications from private sector consultants the airport sponsor determines that a qualified airport wildlife biologist is not available to complete a wildlife hazard assessment, the sponsor may utilize the services of the WS.”

Must certify that there is no qualified private Wildlife Biologist available before using USDA-WS “However, the sponsor must certify to the FAA that they followed

Title 49 CFR Section 18.36 and that no qualified consultants were available. The certification should be submitted with the sponsor’s application.”

Airports MUST Know What Is Going on Within 5 Miles of the Airport Need to know what is going on within 5 statute

miles of the airport. And airports need to take reasonable efforts to stop land uses that will create wildlife attractants, otherwise they may be in violation of their grant assurances.

Airports need to push FAA to require notification from proponents of incompatible land uses pursuant to its authority under 49 U.S.C. § 44718

Wildlife Hazard Assessment and Wildlife Hazard Mitigation Programs are essential Make a mitigation program and stick to it. FAA is

going to push back on the airports because of the OIG’s Audit Report because FAA perceives that airports have more authority to carry out the issues that OIG is concerned about.

Increased Liability and Risk for Airports Due to Wildlife Hazards. Increased liability for airports for wildlife hazards is on

the way. Liability for bird strikes may land in the airports’ laps.

Aircraft owners may start presenting the bills for aircraft damage to airports who have not done enough to mitigate the wildlife hazards.

Contact Information Steven M. Taber

Taber Law Group, P.C. P.O. Box 60036

Irvine, California 92602 (949) 735-8217

E-mail: staber@taberlaw.com Website: http://taberlaw.com

Blog: http://airportlaw.wordpress.com Twitter: @TaberLawGroup